The New McCarthyism
How a smearing of Justice Department lawyers as
"terrorist sympathizers" traveled from the
conservative media to the
ADAM SERWER |
March 3, 2010 | web only
http://prospect.org/cs/articles?article=the_new_mccarthyism
The "Gitmo Nine" aren't terrorists. They weren't captured fighting for the Taliban. They've made no attempts to kill Americans. They haven't declared war on the
In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay -- and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the
"These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed," says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. "The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda."
The attorneys who challenged the Bush administration's national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn't within constitutional bounds, conservatives argue that anyone who opposed the Bush administration's policies is a traitor set to undermine America's safety from within the Justice Department.
"Terrorist sympathizers," wrote National Review's Andrew McCarthy in September, "have assumed positions throughout the Obama administration."
Since Obama took office, the question of detention procedure has been reintroduced and more deeply politicized. The Bush-era military commissions turned out to be woefully ineffectual and were widely seen as skewed against the defendants. Yet they produced only three convictions during the entire administration, in part because the
Meanwhile, civilian courts tried more than a hundred terrorism cases. But much to the disappointment of human-rights advocates, the Obama administration, while choosing to try the alleged September 11 plotters in civilian court, has opted to continue many Bush-era policies, including reformed military commissions.
Nevertheless, McCarthy, a former assistant
Justice Department lawyers aren't the only ones who have represented accused terrorists. American military personnel have as well, often successfully. Major Eric Montalvo (retired), who acted as a defense counsel in the
Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. "There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist," Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. "What we have seen over and over and over is that the vast majority of detainees at
Even former military prosecutors have expressed views similar to those of the Gitmo Nine. Col. Morris Davis (retired) served as the former chief prosecutor for the
"[McCarthy] was a prosecutor for a number of years, so he knows better than that,"
McCarthy is no stranger to shock value -- he entertains a number of fringe beliefs, including the possibility that Barack Obama was not born in the
Holder shrugged off the op-ed's insinuations: "I'm not worried about McCarthy."
In the same hearing, Sen. Chuck Grassley demanded that Holder identify the number of attorneys in the Justice Department who had litigated on behalf of suspected terrorist detainees, or at least offer a list of the recusals. He argued that "this prior representation creates a conflict-of-interest problem for these individuals." Holder said he would consider Grassley's request and assured him that "we're very sensitive to that concern and mindful of it, and people who should not participate in certain decisions do not do so."
Holder added that he had already recused himself because his former law firm,
On Feb. 18, Assistant Attorney General Ronald Weisch responded to Grassley's inquiries, saying, "Only five of the lawyers who serve as political appointees in those components represented detainees, and four others either contributed to amicus briefs in detainee-related cases or were otherwise involved in advocacy on behalf of detainees." Weisch said that some lawyers had recused themselves from specific cases. But he added that it was common for lawyers in the Justice Department, who go in and out of public practice, to "make legal arguments on behalf of the
But it was too late for reasoning. By this point the rest of the conservative media had begun taking up the cause, referring to the lawyers Weisch had mentioned as the Gitmo Nine. At the
On Tuesday, all attempts at subtlety were abandoned.
Keep America Safe, the conservative advocacy group which was founded by Liz Cheney to defend torture and oppose civilian trials for suspected terrorists and which has close ties to McCarthy, turned the Gitmo Nine into the "al-Qaeda Seven." The group put out a Web video demanding that Holder name the other Justice Department lawyers who had previously represented terrorist detainees or worked on similar issues for groups that opposed the Bush administration's near- limitless assumption of executive power. "Whose values do they share?" a voice asks ominously. "Americans have a right to know the identity of the al-Qaeda Seven."
The ad echoed McCarthy's references to the "al-Qaeda bar" from months earlier.
"This is exactly what Joe McCarthy did," said Gude.
"Not kind of like McCarthyism; this is exactly McCarthyism."
The attorneys who secured greater due process rights for detainees weren't attempting to prevent terrorists from being punished -- they were attempting to prevent the government from assuming limitless power to imprison people indefinitely based on mere suspicion.
Not all of those fighting the Bush administration's policies even believed that terrorists should be tried in civilian courts. Katyal, who litigated the 2006 Hamdan v. Rumsfeld case in which the Supreme Court decided in the detainees' favor, advocated for using military courts martial -- and later, authored an op-ed for The New York Times alongside former Bush lawyer Jack Goldsmith arguing for a new "national security court" to try terrorists. Still, Katyal held that Bush's general policy for trying terrorists "closely resemble those of King George III."
For human-rights advocates, there's something bitter about conservatives targeting those attorneys who worked to curtail the Bush administration's abuses of power. Two weeks ago, the government released a long- awaited Office of Professional Responsibility report recommending professional sanctions for John Yoo and Jay Bybee, two former lawyers in the Bush administration's Office of Legal Counsel who gave the green light for the use of torture in interrogations.
OPR's recommendations were overruled by David Margolis, a high-ranking Justice Department official. Margolis nevertheless acknowledged that Yoo and Bybee exercised "poor judgment," and said that it was a "close question" as to whether Yoo "intentionally or recklessly provided misleading advice to his client."
Conservatives have since claimed that Yoo and Bybee were "exonerated" by the report. Last week, at a Senate Judiciary Committee hearing on the OPR report, Sen. Jon Cornyn of Texas said that "the Department's decision in this matter should once and for all put to rest any notion that John Yoo, Jay Bybee, and their associates deserve anything other than the thanks of a grateful nation for their service."
"The right is treating the lawyers who came up with the justification for torture as heroes, and the lawyers like Katyal who helped restore the rule of law as villains," says Frakt. "They've just got their heads screwed on backwards."
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
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